Emeritus professor of constitutional law Marinus Wiechers told Independent Newspapers that Monday’s Supreme Court of Appeal (SCA) decision that effectively put him back in the dock meant there was now a probable scenario that the ANC might opt for legislation that would immunise a head of state against criminal prosecution.
The SCA set aside last year’s controversial High Court ruling by Judge Chris Nicholson, which nullified the corruption charges against Zuma. The ANC and its allies are resolutely sticking to the decision that Zuma is their presidential candidate although there is little that can be done to clear his name before the upcoming general elections.
Wiechers said that in the light of the "clinical and sober" judgment by the SCA, Zuma’s prospects of fighting his prosecution through the courts were dimming.
"Therefore the likelihood increases that the ANC would bring a law that would give the sitting head of state immunity from criminal prosecution," he said.
Such laws, although not common, were not unusual in comparable democracies such as France and Italy.
Wiechers said it was, however, fair to speculate that Zuma’s legal team would first bring some form of appeal against the SCA judgment or an application for a permanent stay to buy time before the ruling party made up its mind on whether to present parliament with draft legislation to immunise the head of state.
"However, if they don’t do it now (before the elections), the ANC risks losing the two-thirds majority it may need to get the legislation passed," he said.
Giving some credence to the possibility, more radical alliance leaders were yesterday boasting that any criminal case against Zuma would "be quashed" after the elections.
"You cannot have a President of the Republic hauled before the courts like a common criminal.
We must respect the office of the president," said an alliance leader. He would not elaborate on whether the French and Italian model for immunity was being considered by the ruling party.
Unisa constitutional expert Shadrack Gutto agreed that given the "strong" SCA decision, a political solution may be the ANC’s only way out of the dilemma of having a sitting head of state spending much of his time in court.
While immunity legislation was one of a few political options open to the ANC, Gutto said this would "be disastrous for the country".
Other possible "deals" included a plea bargain, which would require the ANC president to plead guilty to charges of fraud, racketeering and tax evasion.
Another, more likely, avenue will be to apply to the High Court for a permanent stay of prosecution on the basis that the legal delays have prejudiced Zuma’s case and damaged his reputation.
University of Cape Town chief legal advisor Paul Ngobeni believes this is a better option than going for a full-scale appeal against the SCA judgement, which may be lengthy, uncertain and still fail to get Zuma off the hook.
Ngobeni, who has acted as a consultant to the ANC on its internal arms deal probe, ruled out the possibility of a plea bargain between Zuma and the State.
The ANC insisted on Monday that the SCA decision would make no difference to its resolve to keep Zuma as its presidential candidate and that the party would "pursue all options available in law."
Party spokesperson Carl Niehaus told Independent Newspapers that there was no need to call together any of the ANC’s top decision-making structures to discuss the implications of the judgment ahead of the elections.
"There is nothing in this judgment that changes anything (in terms of the ANC’s stance on Zuma)," he said.
The National Prosecuting Authority (NPA) on Monday again dismissed speculation that it was negotiating a legal deal with Zuma’s lawyers and said that the effect of the "correct" ruling was that the ANC president was still an accused. NPA spokesperson Tlali Tlali said that only a date for his next appearance in court was under discussion.
Opposition parties welcomed the judgement and urged the NPA to continue the legal process and to "give Zuma his day in court".
Democratic Alliance leader Helen Zille also called on Zuma to step aside in his bid for the presidency.
Party insiders believe this route would be too divisive for the party, which has already seen a split after its decision to dismiss former president Thabo Mbeki.
Also, sources suggested, die-hard alliance supporters of Zuma had already ensured that those who were in favour of a compromise presidential candidate had been sidelined.
Businessman and one-time presidential aspirant Tokyo Sexwale was apparently quizzed about the revival of a third way "movement".